Hewitt v. State of California et al

Filing 26

ORDER to DENYING Plaintiff's Motions for Discovery and Appointment of Counsel 24 , 25 ; Third Amended Complaint Due By August 8, 2011, signed by Magistrate Judge Gerald B. Cohn on 7/8/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EDWARD HEWITT,

CASE NO. 1:09-cv-00661-OWW-GBC (PC)
Plaintiff,

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ORDER TO DENYING PLAINTIFF’S
MOTIONS FOR DISCOVERY AND
APPOINTMENT OF COUNSEL

v.

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STATE OF CALIFORNIA, et al.,

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(ECF Nos. 24 & 25)

Defendants.

AMENDED COMPLAINT DUE BY AUGUST
8, 2011

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/
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ORDER

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Plaintiff Edward Hewitt is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 25, 2011, the

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Court screened Plaintiff’s Second Amended Complaint and found that it failed to state any

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claims upon which relief could be granted. (ECF No. 22.) The Court dismissed Plaintiff’s

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Complaint and ordered him to file an amended complaint within thirty days. (Id.)

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A.

Motion for Appointment of Counsel

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Plaintiff filed a Motion for Appointment of Counsel. (ECF NO. 25.) Plaintiff does not

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have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel
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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will

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seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks

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and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances.

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases almost daily. Further, at this early stage in the

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proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on

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the merits, and based on a review of the record in this case, the Court does not find that

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Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, Plaintiff's motion for the appointment of counsel is

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denied, without prejudice.

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B.

Motion for Discovery

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Plaintiff filed a Motion for Discovery and Lodging of Documents. (ECF No. 24.) The

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Court notes that discovery has not been opened as this action is only in the screening

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phase. Once, and if, the Court finds that Plaintiff has stated a cognizable Section 1983

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claim, then service is ordered. Discovery does not open until Defendants have been

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properly served and have filed an answer or other responsive pleading. Thus, Plaintiff’s

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requests for discovery is improper at this point and is denied.

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C.

Amended Complaint

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Plaintiff was given thirty days to file an amended complaint in the Court’s May 25,

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2011 Screening Order. (ECF No. 23.) Plaintiff was warned that failure to comply with the

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Court’s Order may result in dismissal of this action for failure to state a claim upon which

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relief could be granted. (Id.) To date, Plaintiff has not filed an amended complaint.
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Local Rule 11-110 provides that “failure of counsel or of a party to comply with these

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Local Rules or with any order of the Court may be grounds for the imposition by the Court

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of any and all sanctions . . . within the inherent power of the Court.” District courts have

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the inherent power to control their dockets and “in the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,

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or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.

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1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment

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of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure

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to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for failure to lack of prosecution and failure to comply with local rules).

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Because Plaintiff has not filed an amended complaint, there is not an operative

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pleading in this action. Plaintiff is hereby on notice that failure to comply with this Order

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will result in dismissal of this action for failure to prosecute and failure to state a claim upon

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which relief could be granted.

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D.

Conclusion and Order

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s Motion for Appointment of Counsel is DENIED;

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2.

Plaintiff’s Motion for Discovery is DENIED; and

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3.

Plaintiff’s Third Amended Complaint is due by August 8, 2011.

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IT IS SO ORDERED.

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Dated:
1j0bbc

July 8, 2011
UNITED STATES MAGISTRATE JUDGE

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